In order for a record to be exempt from disclosure under FOIA exemption 7(A), it must be an investigatory record compiled for law enforcement purposes, and production of that type of record must interfere with law enforcement proceedings. The Department has failed to show that the ILRs meet either of those threshold requirements.

The ILRs are not "investigatory" records compiled as part of an inquiry into specific suspected violations of the law. Center for National Policy Review on Race and Urban Issues v. Weinberger, 163 U.S. App. D.C. 368, 502 F.2d 370, 373 (D.C. Cir. 1974); Rural Housing Alliance v. United States Department of Agriculture, 162 U.S. App. D.C. 122, 498 F.2d 73, 81 (D.C. Cir. 1974); Gregory v. FDIC, 470 F. Supp. 1329, 1334 (D.D.C. 1979). Rather, they are more accurately described as records generated pursuant to "routine administration, surveillance or oversight of Federal programs." Gregory, supra at 1333-34. The Court of Appeals noted in Center for National Policy, supra, "there is no clear distinction between investigative reports and material that, despite occasionally alerting the administrator to violations of the law, is acquired essentially as a matter of routine. What is clear, however, is that where the inquiry departs from the routine and focuses with special intensity upon a particular party, an investigation is under way." 502 F.2d at 373.

ILRs are compiled from information gathered during independent plant inspections by FSIS's Review and Evaluation Staff. At that point, there is no enforcement proceeding or investigation focusing on specific alleged illegal acts in existence. The Staff reviews are clearly routine administration. See Sears, Roebuck & Co. v. GSA, 166 U.S. App. D.C. 194, 509 F.2d 527, 528 (D.C. Cir. 1974); Rural Housing, supra at 80-82. They are not directed at particular plants; not based on information suggesting that any specific establishment is violating regulations; and the Department admits that the primary purpose of the reviews is to evaluate the effectiveness of the USDA's continuous inspection program. Affidavit of Donald L. Houston, filed with defendant's motion for summary judgment of January 13, 1983, at p. 3. In fact, the FSIS Review and Evaluation Staff which prepares the ILRs has no enforcement functions. It is only after the Review Staff has forwarded the ILR to the MPIO for further information-gathering and informal negotiations that the inquiry "departs from the routine" and an investigation can be said to have started. While the information resulting from further investigation by the MPIO may be exempt from disclosure under exemption 7(A), the ILR is not exempt simply because it is commingled with that information in the MPIO file. The fact that information in an ILR may form a basis for further investigation does not make that ILR an investigatory record created pursuant to an investigation.

Nor is the status of the ILR affected by FSIS's recent change in policy that individual ILRs only be prepared when review suggests "serious" violations, rather than for every plant. The information in the ILR is still gathered during the course of routine administration and does not become investigatory because it may alert the administrator to a possible violation of law. Center for National Policy Review, supra at 373.

Later cases in which a claim of exemption 7(A) has been considered also focus on whether release of withheld documents permits the target of an investigation to discern the scope and nature of the government's case, or to affect evidence or impede an investigation. See NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 57 L. Ed. 2d 159, 98 S. Ct. 2311 (1978); Coastal States Gas Corp. v. DOE, 199 U.S. App. D.C. 272, 617 F.2d 854 (D.C. Cir. 1980); Campbell v. HHS, 221 U.S. App. D.C. 1, 682 F.2d 256 (D.C. Cir. 1982). This is not such a case. No potential target of investigation or enforcement action seeks access to information not in its possession. The Department does not argue that the meat or poultry establishment is unaware of the conditions noted in the ILR, or that disclosure of the ILRs would somehow lead to alteration or destruction of evidence.

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